Aug 14

Aug 14 Posse Comitatus

Chicago, Demonstrations, Donald J. Trump, Performance, Protest, Public Declarations

“Yet, another mass protest against the war would be meaningless unless many times the size of the previous effort; the peace movement, if not growing, would become a predictable figure in the tapestry, to be discounted by the power elite rather than respected.”

— Norman Mailer, Armies of the Night: History as a Novel, the Novel as History (1967)

The organizers of the anti-Trump demonstrations in Chicago certainly keep their demonstrations topical. At 5:30 PM today, a number of groups joined together for an emergency action branded Stand Against Trump’s Attacks on D.C.

Earlier this week, when announcing that he would deploy National Guard troops to combat the declining crime in Washington, D.C., Donald J. Trump referred to Chicago and several other cities, threatening to also deploy troops to those cities. While he may have legal authority to deploy the National Guard in D.C. because of its unique status as federal district, he has no authority to call out the National Guard in Chicago, except as permitted by the Posse Comitatus Act of 1878. Just one sentence in length, the act states:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Normally, the National Guard is not covered by the Posse Comitatus Act because state governors are the ones who typically call them into service. Yet, the president does have some authority to activate the National Guard units, typically after consultation with a state’s governor. At that point, the National Guard has been federalized, meaning that it becomes subject to the Posse Comitatus Act.

As I understand the law—and I am hardly an expert—the National Guard can be used in the wake of a natural disaster without running afoul of the Posse Comitatus Act if its activities do not involve law enforcement. For example, the guard could assist in rescue or cleanup efforts.

Under the 1792 Insurrection Act, Congress granted. the president the authority to deploy the military:

Whenever there is an insurrection [] in any State against its government upon the request of its legislature or of its governor if the legislature cannot be convened (10 U.S.C. §331); or
Whenever the President considers that unlawful obstructions, combinations, or
assemblages, or rebellion against the authority of the United States, make it impracticable
to enforce the laws of the United States in any State by the ordinary course of judicial
proceedings (10 U.S.C. §332).

Section 333 of the Insurrection Act then provides:

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it:

so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. (10 U.S.C. §333).

As I read the Insurrection Act, Trump has no legal authority to call out members of the Illinois National Guard to enforce Illinois criminal law unless the Illinois legislature or Governor Pritzker request him to do so. He does have grounds to do so without receiving a request from the state if Federal law is at issue. Presumably, Trump and his lickspittle lackey, little Stevie Miller, believed the act gave them the authority to recently call out the California National Guard without first consulting California Gavin Newsom because the guard was being used to protect federal property, which means federal trespassing and related criminal laws were at issue. Trump and Miller presumably looked to the “domestic violence” phraseology in Section 333 for their authority.

Keep in mind that the predicate for taking action is an “insurrection [or] domestic violence.” In normal parlance, day to day criminal activity does not constitute an insurrection or domestic violence, although the term “domestic violence” is vague, leaving it open to interpretation. Nor do lawful protests, demonstrations, or rallies under the aegis of the First Amendment constitute criminal activity.

In sum, Trump has no authority to call out the Illinois National Guard to enforce Illinois’ criminal laws in the ordinary course. Yet, the mere possibility of a Trump/Miller/Bondi/Hegseth/Noem overreach certainly provided a good reason for today’s demonstration in Federal Plaza.

When I arrived shortly before 5:00 PM, the plaza was largely empty. Twenty or thirty people were milling about. When I saw two TV news videographers talking outside the post office aligning the plaza, I said to both as I approached, “Too many demonstrations.” Paraphrasing, one cameraman responded, “That’s what we were just saying.”

Before Covid, 5:30 PM demonstrations may have made sense: all those workers leaving their offices, heading home. But demonstrations timed to coincide with rush hour don’t make sense in a world when many people now work remotely. Perhaps of greater significance, the office vacancy rate in Chicago’s Loop is 23.2%, an all-time high. The retail vacancy rate is even worse, hovering just below 30%. Foot traffic in the Loop has not rebounded. Even at noon, the Loop often could double as a ghost town in the Wild West.

Like others, this demonstration did not start on time, which assures that latecomers can hear the speeches, and more importantly, participate in the subsequent march through the streets of Chicago. I stayed for several of the speeches, but left shortly after 6:30 PM to attend the Russian émigré demonstration in support of Ukraine.

With the exception of Methodist Reverend Charles Straight, the speakers hewed the usual line. Reverend Straight, on the other hand, mixed Ten Commandment theology—universal Western religious sentiments—with current politics, thereby spinning an uplifting sermon, which was aided by his clear diction and easy-going manner. I immediately liked the reverend.

The other speakers condemned the Trump’s deployment of the National Guard in D.C., indicating that there would be strong opposition if Trump deployed the guard in Chicago. In keeping with past practice, the speeches also touched on a wide variety of Progressive issues, thereby diluting today’s primary message. I’ve said it before, when a demonstration advertises that it is addressing Topic X, the speakers should stick to Topic X. References to Gaza, LGBQT rights, and housing dilute the message even though all are important issues. The old adage, “Less is More” applies equally to demonstrations.

While the demonstrators were enthusiastic, I don’t think there were more than 75 people present. Those who organize demonstrations need to adopt a more focused and strategic approach. Later, while watching the 10:00 PM local news, I confirmed that the demonstrators did stage a march through Chicago’s streets.

Notwithstanding any failings in today’s demonstration, Donald J. Trump needs to restrain his worst instincts if we are to avoid a repeat of 1968 (DNC) and 1970 (Kent State). The U.S. military and the National Guard should not be deployed as a provocation. Since Donald J. Trump’s January 20, 2025 inauguration, each of the 76 demonstrations and political events that I have covered have been peaceful. Let’s keep it that way in spite of the deep division in this country that Trump inflames and relishes.

[Click on an Image to Enlarge It. The Images Are Not Necessarily in Exact Chronological Order]